Partial transcript: Parliament’s Role

Below is a selection of talks from the Parliament’s Role session.

Andrew Blick: In November 1882, Eddie Hamilton, Private Secretary to the then Prime Minister, William Gladstone, was sent what he described in his diary as “some extremely interesting papers about the secret societies.” They suggested the existence of two separate assassination committees in Dublin to which 900 members belonged. The groups were believed to have long lists of prominent targets and “some sort of blow was expected to be struck ere long” was how Hamilton put it. While he felt the discovery of this threat was an achievement, Hamilton noted that “ breaking up these horrible societies is a difficult matter.” One option was “renewing the power of arresting on suspicion” as he put it but the previous suspension of Habeas Corpus was not judged an encouraging experience by Hamilton and, as he said, “any appeal to Parliament for further powers, which would have to be ostensibly for the purpose of breaking up these societies would probably put an entire stop to the flow of information to say nothing of the Parliamentary difficulties which such an appeal would involve.” Hamilton concluded, “ It seems best to work out in secrecy with the present powers.” 

I open with this quote because it is relevant to what I want to consider today, the performance of Parliament in protecting our liberties in a number of ways. First, it shows that some of the security problems we face today are not as novel as is sometimes made out. Second, government has long considered resorting to a similar menu of responses often involving the suspension of due process in some way. Third, governments have in the past at least been able to learn from earlier experiences that certain methods are not effective. Fourth, governments are reluctant to reveal security-sensitive information to Parliament. And finally, the threat of what Hamilton called, “Parliamentary difficulties” can dissuade a government from even bringing forward proposals in the first place. This last is pertinent because we do not always know when Parliament has been successful in averting stringent security measures. It may be that government wants to introduce them but concludes that Parliamentary resistance would be too great, so does not do so. Equally it could be argued that if a government brings them forward at all, Parliament has in a sense failed whether or not it ultimately agrees to the measures which history suggests unfortunately it usually does.     

One obstacle to Parliament’s successful protection of our freedom is the multiple roles it is required to perform. As Michael Wills, the Minister responsible for democratic reform put it last year, “Parliament exercises power on behalf of the people who elect it; passes laws for the courts to apply; provides the authority for the Government to govern and holds the Government to account.” I could add a number of other functions to this list, like being the pool from which ministers are drawn and traditionally including within it the highest court in the land. So I think this list suggests various conflicts of interest. Very importantly for the subject we are looking at today, a body over which the Executive enjoys a high degree of leverage, both with a power of patronage, and through normally possessing a majority in the Commons, a body like this cannot necessarily be expected to prove effective at holding the Executive to account, including in restraining any threats to our freedom.  

We should not therefore be surprised that on many occasions in the past, governments have introduced major internment programmes, in Ireland, in both world wars, and as is often forgotten during the first Gulf war in the early 1990s with little room for Parliamentary interest. 

There has been a high degree of concern over the infringement of human rights that has been contained in counter-terrorism legislation and policies pursued in recent years. A central obstacle to Parliament properly overseeing the Government in this area, is the taboo surrounding the public discussion of intelligence and security policy. Increasingly stringent measures are usually justified on the basis of a threat which is said to be growing but about which little meaningful detail is provided.  In October last year the Parliamentary Joint Committee on Human Rights  (JCHR) was moved to state that,” We do not underestimate the threat this country faces from terrorism, but when the Government seeks more extensive counter-terrorism powers on the basis of broad assertions about the growing threat, it is vital that it produces to Parliament the evidence on which those assertions are based. “  The Government has yet to produce this kind of evidence, or even an account of what this kind of evidence might be. Even measuring Government performance against its own security targets – and this after all is a target-obsessed Government -  is impossible for Parliament, because Public Service Agreement 26, entitled, ‘Reduce the Risk to the UK and its Interests’ states, “ The text of the Public Service Delivery Agreement on countering terrorism is not being published. By its nature, the PSA contains information about the UK counter-terrorism effort that could potentially be useful to those who threaten the UK and its interests.” So it is very hard for Parliament to hold Government accountable. 

Furthermore the main body responsible for scrutiny of security and intelligence agencies is the Intelligence and Security Committee (ISC). Traditionally it is not a full Parliamentary Committee – there has been talk about changing this but it hasn’t happened yet – the ISC is appointed in consultation with the Opposition by the Prime Minister to whom it reports. Its meetings are held in secret. Often passages from its reports are deleted on security grounds before they are published. It uses Cabinet Office premises and staff. From 1999 to 2004, the ISC had an investigator to help it in its work, but after he made comments on the BBC about the use of intelligence prior to the invasion of  Iraq, his contract was allowed to lapse and he wasn’t replaced. For all these reasons the ISC has proved to be insufficiently autonomous from the Executive in both symbolic and practical terms to be a satisfactory component in the democratic oversight of security policy.  

Finally, I would like to make a more general point about whether Parliamentary scrutiny has adapted sufficiently to take account of the changing nature of legislation. While the number of full Acts of Parliament being passed is possibly in long-term decline – although the length of individual acts has tended to grow – there has been over the decades a steady increase in the quantity of secondary legislation, The Merits and Statutory Instruments Commission, which I think is a good innovation,set up to deal with this in the House of Lords, had to consider over 1,154 instruments during 2007-8 in only 33 meetings. It is quite hard for Parliament to really keep a handle on what is going through the system. This secondary legislation can have severe consequences for liberty, amongst many other things. For instance the Identity Cards Act 2006 is largely enabling legislation with the details to be filled in later by secondary legislation. And the same applies to the Children Act 2004, regarding the parts dealing with the maintenance of data on children. Often, Parliamentary scrutiny on secondary legislation is severely circumscribed or non-existent, and secondary legislation usually can’t be amended. The control orders and 28 days pre-trial detention regimes are both renewed by secondary legislation and the JCHR has complained repeatedly about the way the Government has handled the renewal processes for both measures including not making important material available in time for it to be debated. Earlier this month in its report on surveillance the House of Lords Constitutional Committee argued that if possible, Government’s powers should be set out in primary legislation. It also argued that in the event that secondary legislation is necessary, it should be subject to robust Parliamentary scrutiny. A particular problem to be avoided which was identified by the Committee is “function creep” where the scope of the Bill is gradually expanded beyond what Parliament envisaged. Examples of where “function creep” has taken place include the National Pupil Database, originally contained in the Education Act 1997 and famously Local Authority use of powers given to them under the regulation of the Investigatory Powers Act 2000. The use of secondary legislation can be a way of expanding primary legislation far beyond what Parliament originally envisaged it would be used for when it passed that primary legislation. 

To conclude, given the nature of Parliament, its past record in this area, and current trends, it is fair to conclude that we can’t always rely on Parliament to protect our freedoms. I would argue that in the event of a major terrorist attack in the UK, it would be unlikely to provide an effective break on a government which wanted to introduce far-reaching security measures using secondary legislation under the Civil Contingencies Act 2004. Improving Parliamentary oversight therefore, including of intelligence and security policy and secondary legislation is a task we need to take really seriously. Thank you.

Jonathan Butterworth: You should all have the report in front of you that is entitled, the Abolition of Freedom Act, 2009, produced by myself and eleven other members of the UCL Students Human Rights Programme. Essentially what it looks to do is to answer the question: why and how isn’t Parliament capable of protecting our liberties against the executive? Particularly when it comes to the  database state – the interception, collection, storage and sharing of private information – what we have since 1997 is a stream of legislation which has eroded our privacy to such a degree that it is shocking. If this is the best that Parliament can do, then we will have to ask where accountability is going to come from on this if not from Parliament. In some cases, the House of Lords is doing a good job, and the Joint Committee on Human Rights (JCHR) is doing very good work. But we should expect more from our democratically elected legislature, the House of Commons. 

There are six main problems with the House of Commons as I see it. One of the main problems is the programming and scheduling of bills: they fly through the House of Commons so quickly that MPs are unable to take account of what is passing through. The Anti-Terrorism Crime and Security Act of 2001, that came out just after 9/11 went through within about three days, and it was this Act that allowed the Executive to detain non-UK nationals in Belmarsh without trial.  Many MPs were simply unaware of what was in that legislation. You have another example now in the Counter-Terrorism Act 2008, where photographers find themselves committing an offence if pictures they take could be used by other individuals for the purposes of terrorism: they have to give their film up. The House of Lords and the courts have become our constitutional watchdogs because the House of Commons is doing an embarrassingly bad job. If in the case of Jackson versus the Attorney General over the hunting ban, the courts have gone so far as to threaten to remove parliamentary sovereignty, effectively making the courts themselves the supreme body of law within the UK, this is a regrettable reaction to what has happened in Parliament over a long period of time. 

The codification of prerogative powers needs to be addressed urgently. The fact that the government can still go to war without a democratic vote, the ratification of treaties and  appointment of judges – all these executive powers are being examined at the moment and they should be parliamentary powers. Select Committees need increased power to be able to command civil servants and ministers to appear before them and then provide evidence. This is currently reliant on a code of practise which as a general rule – the JCHR, the Constitutional Committee and some of the European committees may be an exception – means that these committees have insufficient powers to fully scrutinise. Keith Ewing MP has a bold proposal on this: he suggests that we should look to the Swedish model  where they have constitutional committees within their houses of parliament which are actually allowed a veto on legislation. It may not be the answer, but this is the direction we need to look in. 

Because if you look at the figures prepared by the previous legal adviser to the JCHR, Professor Klug, it seems that the JCHR, though it may get a polite hearing in the House of Commons, is much better listened to by the House of Lords, and its work is hampered as a result. From its inception to 2007, 500 bills were examined by the JCHR, but only 18 were actually repealed by Parliament on the basis of the JCHR’s recommendation. That is better than none, but it isn’t very good. 

The House of Commons claims that it is sovereign. But I feel that we have executive, not parliamentary or popular sovereignty within our legislature. Whipping within the House of Commons. While some votes are free for the backbenchers to dissent upon, too often there are implicit pressures placed upon MPs, especially those who would like to make a political career in the future. For them to be able to vote against a bill is almost impossible.  

Finally, a major problem is our first-past-the-post electoral system and the disproportionate majorities that we have in the House of Commons. Moving towards the single transferable vote and a proportionate representation would make for a stronger House of Commons.   

One more thing I would like to say is that the role Parliament can play shouldn’t be looked at in isolation. It needs to be looked at within a web of accountability: you have Parliament, the courts and the executive role – but most importantly to my mind you have our role. What is the role of the public? Parliament should be receptive to the public. Events like this, where we have Dominic Grieve, Michael Wills, the ex-Attorney General are essential to pass the message forward that civil liberties are something to be cared about. I would like to throw a gauntlet down to the Convention on Modern Liberty. I would like it to become an annual conference where we meet and discuss what has happened in the previous year: what has been gained so that we advance our civil liberties – so, for example will Dominic Grieve stick to his promise to pass a repeal bill which pulls back all of this legislation – and what hasn’t, holding people to account.

I would also like to see more cooperation in civil society to this end. Today is a good first step, and the UCL Students Human Rights Programme would certainly like to reach out and collaborate more with Democratic Audit, Liberty and Justice, who are already doing fantastic work. That sort of pressure directed at Parliament will enable some of those MPs to feel that they are actually voting on behalf of the people, and that the people demand that they protect our civil liberties.

Murray Hunt: I want to take a step back to consider what the nature of our Parliament’s role is under the current arrangements. We have heard quite a lot of calls this morning for a new constitutional settlement, a new dispensation. And those of you who were in the session on Judges and Politicians this morning, will have heard Lord Bingham quite rightly warning us that what that might mean is that we would be going for a model of judicial supremacy, making the judges the supreme interpreters of our human rights protections. At the same time we had Keith Ewing MP in that session saying that what we need is Parliament and not the courts to protect our human rights. Keith Ewing is probably one of the last defenders of a pure legislative model of human rights protection, in which it is for Parliament to the exclusion of the courts to be the authoritative interpreters of human rights protections and to have the final say on all matters to do with human rights. There is a lot in what he has to say about mechanisms which could improve Parliament’s role. 

But I wanted to start by counterposing those two extremes – a judicial supremacy model of human rights protection and a legislative model. What we have under the Human Rights Act is something very different from either of those extremes. It is a quite unusual hybrid model and it is worth thinking about what that means. Under our system and under the Human Rights Act as it currently is, it is for both courts and Parliament to interpret what the human rights standards mean and to take a view on them. We then have a role for courts to look at Parliament’s interpretation in the way that they have drawn up their legislation, to see if it is compatible. In the institutional mechanisms set up in the Act it can come back to Parliament if there is a declaration of incompatibility for Parliament to look at it again and consider in the light of the court’s view what it thinks about the interpretation of those fundamentals. 

So we have got this very interesting, different type of human rights mechanism set up in our Human Rights Act, and I just want to think for a moment what that means for what it is that Parliament does. Because, what it commits us to is a distinctively democratic culture of human rights. The Human Rights Act has at its core a meaningful role for politicians and accountable decision-makers to debate and discuss and disagree within certain perameters, what human rights mean in practise in particular contexts. This is a culture of justification. What I mean by that is that all the major constitutional actors in every branch – legislative, executive and the judiciary – operate on the assumption that any exercise of power or any omission of the exercise of power by the powerful, which affects everyone’s fundamental values and interests, has to be justified by reference to publicly stated reasons. There have to be institutional mechanisms for those reasons to be scrutinised and for the givers of the reasons to be held to account for the adequacy of those reasons to see whether they are good enough justifications for the interference with a right, or for the failure to act to protect a right. 

This idea of a culture of justification which the Human Rights Act sets up the mechanisms for, is a useful way of thinking about what it is that Parliament should do under a system of human rights protection such as the one that we have. One very important role that Parliament then has in that system is to subject to scrutiny everything which the Government does which has human rights implications. Now that will include a very large, what we might call a negative dimension to that activity. It will involve looking at the adequacy of the justifications given by the Government for – let’s say passing a measure which interferes with privacy, let’s say a data-sharing measure – and subjecting these to a very rigorous scrutiny, to independent and sceptical scrutiny, starting from a standpoint which asks why the measure is necessary, asking for the evidence about how this isn’t going to have a disproportionate impact on those affected and so on. That is a very important aspect of Parliament’s function, that scrutiny for compliance, where a measure is going to interfere with human rights. 

But an equally important aspect and one we have heard much less of today, is a positive  dimension to that function of scrutinising for justification. An awful lot of human rights standards require the state not only not to interfere with things, but they also require the state actively to do things. An awful lot of human rights law imposes positive duties and obligations on the state to do something. That is where Parliament also has a very important role, to identify where those duties and obligations require the state to do something, and where more often than not it requires the Government to take some action. It is a much more difficult part for Parliament to play than one where it reacts to measures which have been brought before it by the Executive, but it is vital. We see this in a whole range of issues. The JCHR has held inquiries into the rights of older people in health care, which have identified the need for the Government to take positive steps to protect the dignity of people in those settings. In the current row about torture, there is an obligation on the state imposed by human rights law to carry out positive, adequate investigations. The Government has to do something. And it is for Parliament to put the pressure on the Government where human rights standards actually require the Government to do something.  

It is in that area, in particular, that we can identify quite a lot of institutional obstacles to Parliament being able to fulfil that positive role of scrutiny for justification for inaction or omission. What the JCHR does to try and facilitate that Parliamentarian role is not to perform that task itself, but to facilitate well-informed Parliamentary debate so that Parliament can play its role of holding the Government to account. The way the JCHR has interpreted its remit in comparison to other human rights type committees in many other countries, is rather more extensive than these, most of which are confined to scrutinising legislation for compatibility, The JCHR has developed a much wider range of activity, including importantly – looking at court judgments where the courts are given a role under the Human Right Act; looking at violations of human rights; and scrutinising the Government’s response. There is often a role for Parliament to decide what should be done.  There may be a whole range of options, and the JCHR looks very carefully at how it can best provoke debate in Parliament and promote other human rights obligations. It looks at the extent of the UK’s compliance with other human rights treaties, looking at the most recent recommendations from the various monitoring bodies. It has a whole series of thematic inquiries on at any one time: its currently looking at policing and protest for example. And it looks very carefully at how the Government is implementing the Human Rights Act. So for example, whether it has responded swiftly enough to restrictive judicial interpretations such as the House of Lords interpretation of the meaning of public authority in the Human Rights Act. It brings all those together and tries in its legislative scrutiny work to suggest amendments to Bills in its reports which members of the Committee can put down in their own name – to try and implement the recommendations it has made in these various multiple strands of its work. So it is much broader than a mere scrutiny committee. 

Now whether it has been effective is a matter for you to form your own view about. Unfortunately very little research has been done. There is obviously much scope for improvement. But I wanted to finish by identifying a few examples of the sorts of institutional mechanisms within our current arrangements, which could be adopted without requiring a constitutional resettlement – which would help Parliament more effectively to fulfil this scrutiny role in a culture of justification. One would be to extend the coverage of scrutiny of legislation as Andrew identified. Statutory instruments go relatively unscrutinised for human rights compatibility. We would like to see the reasoning which accompanies Government Bills, reasoned statements of compatibility. We would like to see the adoption by the Government of a human rights impact assessment methodology – a  much more thorough, systematic approach to assessing the compatibility of measure with human rights standards. There ought to be more positive statutory duties to implement rights where those rights impose positive duties and obligation on the state and those should be accompanied by various reporting mechanisms to Parliament independent review mechanisms, and so on. Parliament could be the body to which the national human rights institutions report and there could be, for example, departmental plans which include  express consideration of human rights and there is even possibly scope for a national human rights action plan. 

All these are measures which would enhance Parliament’s role and give them a much more central role in debating and discussing what being committed to a fundamental set of human rights actually means in practise.   

You can leave a response, or trackback from your own site.

Leave a Reply